A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §30-6-22a, relating
to establishing the right to control the disposition of the
remains of a deceased person; determining who has that right;
setting forth how that right may be forfeited; setting forth
the role of the county commission; and limiting the liability
of funeral homes.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §30-6-22a, to read as
follows:

ARTICLE 6. BOARD OF FUNERAL SERVICE EXAMINERS.

§30-6-22a. Right of disposition; preneed contract; affidavit on
disposition of remains; role of county commission;
liability of funeral home.

(a) Notwithstanding section twenty-two of this article, a
person who is eighteen years of age or older and of sound mind, by
entering into a preneed funeral contract, as defined in section
two, article fourteen, chapter forty-seven of this code, may direct
the location, manner, and conditions of the disposition of the
person's remains and the arrangements for funeral goods and
services to be provided upon the person's death. The disposition
directions and funeral prearrangements that are contained in a
preneed contract is not subject to cancellation or substantial
revision unless the cancellation or substantial revision has been
ordered by a person the decedent has appointed in the preneed
contract as the person authorized to cancel or revise the terms of
the preneed contract or unless any resources set aside to fund the
preneed contract are insufficient under the terms of the preneed
contract to carry out the disposition directions and funeral
prearrangements contained in the contract.

(b) Except as provided in subsection (c) of this section, the
right to control the disposition of the remains of a deceased
person, the location, manner and conditions of disposition, and
arrangements for funeral goods and services to be provided vests in
the following, in the order named, provided that the person is
eighteen years or older and is of sound mind:

(1)(A) A person designated by the decedent as the person with
the right to control the disposition in an affidavit executed in
accordance with paragraph (B) of this subdivision; and

(B) A person who is eighteen years of age or older and of
sound mind wishing to authorize another person to control the
disposition of his or her remains may execute an affidavit before
a notary public in substantially the following form:

“I, ________________, do hereby designate ___________________
with the right to control the disposition of my remains upon my
death. I ___ have/ ____ have not attached specific directions
concerning the disposition of my remains with which the designee
shall substantially comply, provided that these directions are
lawful and there are sufficient resources in my estate to carry out
the directions.

______________________________

Signed

State of _______________

County of ______________

I, _________________________, a Notary Public of said County,
do certify that _____________________________________, as principal
whose name is signed to the writing above bearing date on the
______ day of _________, 20____, has this day acknowledged the same
before me.

Given under my hand this ______ day of ______, 20__.

My commission expires:_______________________________

____________________________

Notary Public”;

(2) The surviving spouse of the decedent;

(3) The sole surviving child of the decedent or, if there is
more than one child of the decedent, the majority of the surviving
children. However, less than one half of the surviving children
shall be vested with the rights under this section if they have
used reasonable efforts to notify all other surviving children of
their instructions and are not aware of any opposition to those
instructions on the part of more than one half of all surviving
children;

(4) The surviving parent or parents of the decedent. If one of
the surviving parents is absent, the remaining parent shall be
vested with the rights and duties under this section after
reasonable efforts have been unsuccessful in locating the absent
surviving parent;

(5) The surviving brother or sister of the decedent or, if
there is more than one sibling of the decedent, the majority of the
surviving siblings. However, less than the majority of surviving
siblings shall be vested with the rights and duties under this
section if they have used reasonable efforts to notify all other
surviving siblings of their instructions and are not aware of any
opposition to those instructions on the part of more than one half
of all surviving siblings;

(6) The surviving grandparent of the decedent or, if there is
more than one surviving grandparent, the majority of the
grandparents. However, less than the majority of the surviving
grandparents shall be vested with the rights and duties under this
section if they have used reasonable efforts to notify all other
surviving grandparents of their instructions and are not aware of
any opposition to those instructions on the part of more than one
half of all surviving grandparents;

(7) The guardian of the person of the decedent at the time of
the decedent's death if one had been appointed;

(8) The personal representative of the estate of the decedent;

(9) The person in the classes of the next degree of kinship,
in descending order, under the laws of descent and distribution to
inherit the estate of the decedent. If there is more than one
person of the same degree, any person of that degree may exercise
the right of disposition;

(10) If the disposition of the remains of the decedent is the
responsibility of the state or a political subdivision of the
state, the public officer, administrator, or employee responsible
for arranging the final disposition of decedent's remains; or

(11) In the absence of any person under subdivisions (1)
through (10) of this subsection, any other person willing to assume
the responsibilities to act and arrange the final disposition of
the decedent's remains, including the funeral director with custody
of the body, after attesting in writing that a good faith effort
has been made to no avail to contact the individuals under
subdivisions (1) through (10) of this subsection.

(c) A person entitled under law to the right of disposition
forfeits that right, and the right is passed on to the next
qualifying person as listed in subsection (b) of this section, in
the following circumstances:

(1) Any person charged with murder or voluntary manslaughter
in connection with the decedent's death and whose charges are known
to the funeral director. However, if the charges against that
person are dismissed or if the person is acquitted of the charges,
the right of disposition is returned to the person;

(2) Any person who does not exercise his or her right of
disposition within two days of notification of the death of
decedent or within three days of decedent's death, whichever is
earlier;

(3) If the person and the decedent are spouses and a petition
to dissolve the marriage was pending at the time of decedent's
death; or

(4) Where the county commission pursuant to subsection (d) of
this section determines that the person entitled to the right of
disposition and the decedent were estranged at the time of death.
For purposes of this subdivision, the term "estranged" means a
physical and emotional separation from the decedent at the time of
death which has existed for a period of time that clearly
demonstrates an absence of due affection, trust, and regard for the
decedent.

(d) Notwithstanding subsections (b) and (c) of this section,
the county commission for the county where the decedent resided may
award the right of disposition to the person determined by the
court to be the most fit and appropriate to carry out the right of
disposition and may make decisions regarding the decedent's remains
if those sharing the right of disposition cannot agree. The
following provisions shall apply to the court's determination under
this subsection:

(1) If the persons holding the right of disposition are two or
more persons with the same relationship to the decedent and they
cannot, by majority vote, make a decision regarding the disposition
of the decedent's remains, any of these persons or a funeral home
with custody of the remains may file a petition asking the county
commission to make a determination in the matter;

(2) In making a determination under this subsection, the
county commission shall consider the following:

(A) The reasonableness and practicality of the proposed
funeral arrangements and disposition;

(B) The degree of the personal relationship between the
decedent and each of the persons claiming the right of disposition;

(C) The desires of the person or persons who are ready, able,
and willing to pay the cost of the funeral arrangements and
disposition;

(D) The convenience and needs of other families and friends
wishing to pay respects;

(E) The desires of the decedent; and

(F) The degree to which the funeral arrangements would allow
maximum participation by all wishing to pay respect;

(3) In the event of a dispute regarding the right of
disposition, a funeral home shall not be liable for refusing to
accept the remains or to inter or otherwise dispose of the remains
of the decedent or complete the arrangements for the final
disposition of the remains until the funeral home receives a court
order or other written agreement signed by the parties in the
disagreement that decides the final disposition of the remains. If
the funeral home retains the remains for final disposition while
the parties are in disagreement, the funeral home may embalm or
refrigerate and shelter the body, or both, in order to preserve it
while awaiting the final decision of the county commission and may
add the cost of embalming or refrigeration and sheltering to the
final disposition costs. If a funeral home brings an action under
this subsection, the funeral home may add the legal fees and court
costs associated with a petition under this subsection to the cost
of final disposition. This subsection may not be construed to
require or to impose a duty upon a funeral home to bring an action
under this subsection. A funeral home and its employees shall not
be held criminally or civilly liable for choosing not to bring an
action under this subsection; and

(4) Except to the degree it may be considered by the county
commission under paragraph (C), subdivision (2) of this subsection,
the fact that a person has paid or agreed to pay for all or part of
the funeral arrangements and final disposition shall not give that
person a greater claim to the right of disposition than the person
would otherwise have. The personal representative of the estate of
the decedent does not, by virtue of being the personal
representative, have a greater claim to the right of disposition
than the person would otherwise have.

(e) Any person signing a funeral service agreement, cremation
authorization form, or any other authorization for disposition
shall be deemed to warrant the truthfulness of any facts set forth
therein, including the identity of the decedent whose remains are
to be buried, cremated, or otherwise disposed of, and the party's
authority to order the disposition. A funeral home has the right to
rely on that funeral service agreement or authorization and shall
have the authority to carry out the instructions of the person or
persons the funeral home reasonably believes holds the right of
disposition. The funeral home has no responsibility to contact or
to independently investigate the existence of any next of kin or
relative of the decedent. If there is more than one person in a
class who are equal in priority and the funeral home has no
knowledge of any objection by other members of that class, the
funeral home may rely on and act according to the instructions of
the first person in the class to make funeral and disposition
arrangements, if no other person in that class provides written
objections to the funeral home.

(f) No funeral establishment or funeral director who relies in
good faith upon the instructions of an individual claiming the
right of disposition shall be subject to criminal or civil
liability or subject to disciplinary action for carrying out the
disposition of the remains in accordance with those instructions.

NOTE: The Purpose of this bill is to establish the right to
control the disposition of the remains of a deceased person. The
bill determines who has that right and how that right may be
forfeited. The bill sets forth the role of a county commission.
The bill also limits the liability of funeral homes that act in
good faith.